COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70326 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DAVID ADKINS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-329718. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Ronald James, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Daniel Scully, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: David Adkins, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-329718, in which defendant-appellant was convicted of felonious assault in violation of R.C. 2903.11. Defendant- appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 28, 1995, David Adkins, defendant-appellant, and his former girlfriend Terri Behlke went to Capone's Tavern located at 3469 West 117th Street in Cleveland, Ohio. At that time, defendant-appellant and Ms. Behlke had known each other for approximately seven months. At the bar, both defendant-appellant and Ms. Behlke consumed approximately five beers and two shots of Cinnamon Shnapps each during a two hour time period. (Tr. 194- 195.) Around 1:30 a.m., the couple left the bar and returned to Ms. Behlke's apartment located at 1502 Winchester in Lakewood, Ohio. Upon reaching the apartment, an argument ensued when defendant- appellant expressed a desire to go back out and Ms. Behlke refused to allow defendant-appellant to use her 1984 Ford Tempo. Ms. Behlke told defendant-appellant to leave her apartment and subsequently drove defendant-appellant to his daughter's home nearby. Ms. Behlke returned to her apartment, however, as she was starting to fall asleep, defendant-appellant returned and began -3- banging on the door demanding admittance. Ms. Behlke allowed defendant-appellant into the apartment for a brief period of time but defendant-appellant left after approximately fifteen minutes when the Lakewood Police arrived in response to a neighbor's complaint regarding noise in Ms. Behlke's apartment. After the police left the scene, defendant-appellant reentered the apartment, threw Ms. Behlke to the ground and repeatedly kicked her in the chest and stomach. He eventually stopped and left the room, however, when Ms. Behlke telephoned her sister to request assistance, defendant-appellant took the telephone from her and began hitting her again. The beating continued as Ms. Behlke tried to flee into the bathroom. Once in the bathroom, defendant- appellant hit Ms. Behlke in the ear and mouth causing Ms. Behlke to loose a capped tooth. After an undetermined amount of time, Ms. Behlke woke up in the bathroom, took her daughter and left the apartment. Once outside, Ms. Behlke proceeded to call her mother from a public telephone and asked to be taken to Lakewood Hospital. As a result of the assault, Ms. Behlke suffered numerous cuts, a broken tooth, an injured knee and a ruptured eardrum resulting in partial hearing loss in one ear. Defendant-appellant was arrested on September 29, 1995. At that time, a parole holder was imposed upon defendant-appellant arising out of a prior conviction for robbery for which defendant-appellant had previously been paroled by the State of Ohio. -4- On November 1, 1995, the Cuyahoga County Grand Jury returned a one count indictment against defendant-appellant for felonious assault in violation of R.C. 2903.11. The single count indictment also contained a violence specification and an aggravated felony specification arising out of a prior conviction of burglary in violation of R.C. 2911.12. The case was scheduled for jury trial on January 22, 1996. Prior to trial, defense counsel made an oral motion to dismiss the indictment pursuant to R.C. 2945.71, et seq., Ohio's speedy trial statute. The trial court denied defense counsel's motion stating: THE COURT: Okay. If I turn that motion into a Motion to Dismiss for Want of a Speedy Trial under the Ohio Revised Code, the motion has to be denied. The court looked into the running of speedy trial time and ascertained at all points in time that he has been incarcerated in this case, the three for one statute has not been in force because Mr. Adkins was being held on his parole number in our county jail. When you are held on more than one number, the triple count provisions do not count. And we have nine months, 270 days, not 90 days, to bring you to trial. In addition to that, prior counsel Mister --? MR. JAMES: Zachanini (sic). THE COURT: Yes, with Bruce Zaccagnini, had requested a continuance of two weeks -- forgive me but I'm not able to give you the date -- and that was journalized. And we did remind Mr. MacDonald of that, and in fact it is apparent that request of continuance was -5- in reference to the effect Mr. Zaccagnini apparently understood Mr. Adkins wanted time to retain his own counsel. Because you came in right as the two weeks continuance ended. So even if we were in the triple count provisions and there were 90 days to bring this gentleman to trial, we would still have time left due to that continuance. Do you understand my calculation of the speedy trial time, Mr. Adkins? The case then proceeded to trial. On January 24, 1996, the jury returned a verdict of guilty of felonious assault. After the verdict was reached, the trial court found defendant- appellant guilty of the aggravated felony specification but dismissed the additional violence specification as redundant given the conviction on the underlying offense. The trial court then sentenced defendant-appellant to serve a term of twelve to fifteen years at the Lorain Correctional Institute. On March 7, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR David Adkins', defendant-appellant's, sole assignment of error states: APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND OHIO AND R.C. 2945.71, 2945.72, 2945.73 WHEN HE WAS CONFINED IN JAIL AWAITING TRIAL FOR ONE HUNDRED AND FIFTEEN DAYS. A. THE ISSUE RAISED: SPEEDY TRIAL. David Adkins, defendant-appellant, argues thorough his sole assignment of error that the trial court erred in failing to -6- grant his motion to dismiss the indictment on speedy trial grounds. Specifically, defendant-appellant maintains that he was held in jail pursuant to an alleged parole holder even though the record fails to demonstrate that a valid parole holder actually existed. In addition, defendant-appellant maintains that he was not afforded either a preliminary hearing regarding the alleged parole violation or a final parole revocation hearing in accordance with the procedures set forth in the Ohio Administrative Code, procedures defendant-appellant believes are unconstitutional. Lastly, the trial court relied upon a motion for continuance filed by defendant-appellant in order to seek new counsel finding that said motion tolled defendant-appellant's speedy trial time for two weeks. On appeal, it is defendant- appellant's position that the alleged continuance did not toll the statutory speedy trial time since there is no corresponding journal entry reflected in the record. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR SPEEDY TRIAL. R.C. 2945.71, Ohio's speedy trial statute, provides in pertinent part: (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * -7- (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section. In State v. Mann (1993), 93 Ohio App.3d 301, 313, this court, in dealing with the identical issue presented in the case at bar, stated: "The existence of a valid parole holder prevents application of the triple-count provisions of R.C. 2945.71(E)." State v. Brown (1992), 64 Ohio St.3d 476, 479, 597 N.E.2d 97, 99; State v. Cook (1992), 65 Ohio St.3d 516, 518, 605 N.E.2d 70, 76; see, also, State v. Martin (1978), 56 Ohio St.2d 207, 10 O.O.3d 369, 383 N.E.2d 585. R.C. 2945.71(E) is applicable only to those defendants held in jail in lieu of bail solely on the pending charge. Martin, supra, citing State v. MacDonald (1976), 48 Ohio St.2d 66, 2 O.O.3d 219, 357 N.E.2d 40. A parole violation is a separate offense and does not relate to the pending charge as contemplated by R.C. 2945.71(E). Id. "'Thus, the triple-count provision of R.C. 2945.71(E) is inapplicable to a defendant held in jail under a parole holder, even when there are additional criminal charges pending. ***' State v. Dunkins (1983), 10 Ohio App.3d 72, 74-75, 10 OBR 82, 85, 460 N.E.2d 688, 692. See, also, State v. Martin (1978), 56 Ohio St.2d 207, 211, 10 O.O.3d 369, 371, 383 N.E.2d 585, 587." State v. Brown, 64 Ohio St.3d at 479, 597 N.E.2d at 99. Evidence of a valid parole holder can be adduced from the transcripts of the trial court hearing. See State v. Brown, supra, at 480-481. -8- -9- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS. In the case sub judice, a review of the trial court transcript clearly demonstrates the existence of a valid parole holder on defendant-appellant which prevented the application of triple- count provisions of R.C. 2945.71(E). Prior to the commencement of trial, the trial court noted, while denying defendant- appellant's motion to dismiss, that "*** at all points in time that he has been incarcerated in this case, the three for one statute has not been in force because Mr. Adkins was being held on his parole number in our county jail. When you are held on more than one number, the triple court provisions do not count. And we have nine months, 270 days, not 90 days to bring you to trial." (Tr. 10.) No objection was made to the trial court's characterization nor did defense counsel challenge the existence of the parole holder. In addition, during the presentation of the defense case, defense counsel stated to the trial court, "Mr. Adkins indicated a desire to testify in this case. I advised him that because he has a criminal record, he has at least two felony convictions I'm aware, and is presently on parole in the State of Ohio, that I felt it would not be in his interest to testify ***." (Tr. 241-42.) Clearly, the record provides this court with a sufficient basis to conclude that there was, in fact, a valid parole holder on defendant-appellant. State v. Brown, supra; State v. Hubbard (1995), 104 Ohio App.3d 443. Accordingly, the trial court properly determined that the triple -10- count provision of the speedy trial statute did not apply under the facts of this case and defendant-appellant was not entitled to dismissal of the indictment pursuant to R.C. 2945.7l et seq. See, also, State v. Penn (March 24, 1994), Cuyahoga App. No. 64987, unreported; State v. Brantley (June 18, 1992), Cuyahoga App. No. 62412. In addition, defendant-appellant's argument relating to the application and constitutionality of Ohio Administrative Code 5120:1-1-18 is not well taken in light of the Ohio Supreme Court case State ex rel Taylor v. Ohio Adult Parole Auth. (1993), 66 Ohio St.3d 121 in which the court found that, "no liberty interest attached until a parolee is taken into custody pursuant to the detainer. If a loss of liberty is attributable to detention for new crimes, the parole authority has no constitutional duty to hold an immediate parole revocation hearing ***." Id. at 125. See, also, Speakman v. Dept. of Rehabilitation and Correction (1987), 36 Ohio App.3d 1. Lastly, given this court's conclusion that the triple count provision set forth in R.C. 2945.71(E) is inapplicable to this case, it is apparent that the continuance filed by defendant- appellant in the lower court upon which the trial relied as a toll to the speedy trial time is not relevant. Defendant- appellant was brought to trial well within the 270 days allotted pursuant to R.C. 2945.71 even if one completely ignores the alleged continuance. -11- For the foregoing reasons, this court finds that defendant- appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .